SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| ANTHONY DI NUNZIO |
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JUDGES: | CHARLES, BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 April 2004 | |
DATE OF JUDGMENT: | 7 May 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 78 | |
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CRIMINAL LAW – Sentencing – Crown appeal – Culpable driving (by negligence and under influence), negligently causing serious injury and recklessly endangering life – Driving drunk wrong way on freeway while disqualified – Prior convictions for exceeding prescribed concentration (3), driving while disqualified and while unlicensed – Respondent aware of drinking problem – Drove as pleased despite disqualification – Guilty pleas, remorse, etc. - 7½ years’ imprisonment (including 7 for culpable driving) and 5-year non-parole period manifestly inadequate – Re-sentenced (by majority) to total of 8½ years with 6½-year non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the D.P.P. | Mr G. Horgan S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr O.P. Holdenson Q.C. | Clarebrough Pica |
CHARLES, J.A.:
The circumstances of the offences, the prior criminal history of the respondent, and the arguments of counsel are all set out in the reasons prepared by Batt, J.A., and I gratefully adopt his Honour’s statement of them. I agree with his Honour that the sentencing judge erred in giving insufficient weight to specific deterrence in light of the respondent’s antecedent criminal history and the other aggravating factors summarised in par.[27] hereafter, and that in consequence the sentencing judge was led to impose a sentence on count 1 which was manifestly inadequate.
The respondent’s prior criminal history of driving offences before 24 November 2002 was extraordinary and showed blatant and continuing disregard for the law. By 22 November 2001 he had been convicted of driving a motor vehicle whilst having a blood alcohol content exceeding .05% on three separate occasions. He had been disqualified from holding a driving licence on four separate occasions. He had been found guilty of a variety of other traffic offences including exceeding the speed limit, driving in a careless manner, and disobeying a traffic control signal. In his record of interview conducted by police officers on 20 February 2003 the respondent said he had owned the Ford Probe motor car which he was driving on the night of Sunday 24 November 2002 for some two years beforehand. It therefore had been purchased in about February 2001. On 22 November 2001 he had been convicted of his third offence of driving with a blood alcohol content exceeding .05%, and his licence was cancelled and he was disqualified from obtaining any licence for two years effective from 5 August 2001. In the record of interview the respondent admitted that in the first year he had the car, he drove every day, and in the second year was driving to work and a few times at night. It follows that by 24 November 2002, he had been driving his car on virtually a daily basis, notwithstanding his disqualification, for at least…
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- AGLC
- Director of Public Prosecutions v Di Nunzio [2004] VSCA 78
- Case
- [2004] VSCA 78
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the original sentence was manifestly inadequate and, if so, to impose a more appropriate sentence. The court had to consider the severity of the offence, the respondent's history of prior convictions, his awareness of his drinking problem, and his decision to drive despite being disqualified. The court also had to balance the need for deterrence and denunciation against the respondent's expressions of remorse and other mitigating factors.
The majority of the court found that the original sentence was indeed manifestly inadequate. They considered the severity of the offence, the respondent's history of prior convictions, and his decision to drive despite being aware of his drinking problem and being disqualified. The court emphasised the need for deterrence and denunciation, as well as the protection of the community. The court re-sentenced the respondent to a total of 8½ years' imprisonment, with a 6½-year non-parole period. The majority of the court found that this sentence appropriately balanced the need for punishment, deterrence, and denunciation with the respondent's expressions of remorse and other mitigating factors. The court also considered the impact of the sentence on the victim and the community.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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